Supreme Court case threatens union political power

By Dan Walters

Monday, January 29, 2018

Attorney General Xavier Becerra is imploring the U.S. Supreme Court to validate laws in California and other states requiring public employees who are not union members to nevertheless pay “agency fees” to unions.

Such fees, Becerra said in a brief filed last week, fairly distribute costs of negotiating contracts with the state, school districts and local governments.

“The current collective bargaining system has worked for decades,” Becerra said in a statement as he filed his brief, “and serves as an important mechanism for effective personnel management by facilitating the resolution of issues that could otherwise lead to dissatisfaction, inefficiency, and even disruption in the workplace.”

Buried in Becerra’s brief, however, is the true reason that he, other Democratic politicians and the state’s public worker unions are worried that the Supreme Court is very likely to outlaw agency fees this year.

It recounts the history of public worker collective bargaining in California, including the 1977 Dills Act, signed by Jerry Brown in his first stint as California’s governor. While authorizing union representation, the Dills Act did not require workers who didn’t belong to unions to pay dues, the brief notes, and state employees did not join.

Five years later, just before leaving the governorship, Brown signed another bill requiring the agency fees now at issue.

“That change was prompted in part by the fact that, at that time (1982), only 44 percent of state employees were dues-paying members of a union,” Becerra’s brief said, adding, “Without a fair share requirement, a minority of employees could end up paying the full cost of negotiating and administering the contract that set the terms and conditions of employment for all employees—even though the negotiating union was required by law to fairly represent all employees, without any preference for those who agreed to join the union and bear part of the cost of the representation.”

As that history and what’s happened in other states that abolished agency fees imply, unions are worried that overall membership would decline sharply — especially among lower-paid workers to whom dues are significant costs.

That would not only deprive unions of the fee money from non-members, which is small potatoes, but the much larger stream of revenue from members to support political operations, such as electing allies to office and lobbying for better benefits outside of the collective bargaining process.

By extension, it would also deprive California’s Democratic Party of the political funds it has used to acquire and maintain its dominance in the state.

Unions’ fear of how an adverse Supreme Court ruling would damage them is, not surprisingly, exactly the motive of the anti-union “right to work” groups in pushing the issue to the court. Although their cases contend that mandatory fees violate non-members’ free speech rights by forcing them to support political activities, their sponsors really want to crack the political power that public employee unions have acquired in state and local governments.

The court’s conservative majority was expected to overturn agency fees two years ago, in a case arising out of California and involving a teacher (Friedrichs v. California) but the death of Justice Antonin Scalia rendered that case moot

Subsequently, a backup case (Janus v. AFSCME) from Illinois, posing the same issue, was taken to the court, which now has conservative Neil Gorsuch sitting in Scalia’s old seat.

It would be a miracle if Becerra and the unions prevail in what is likely to be a 5-4 split vote by the court.

Dan Walters is a columnist with CALmatters, a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary